| Matter of Hoge (Select Fabricators, Inc.) |
| 2012 NY Slip Op 04482 [96 AD3d 1398] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of William Hoge, Appellant, for the Dissolution ofSelect Fabricators, Inc., et al., Respondents. Select Fabricators, Inc., Plaintiff, v WilliamHoge et al., Appellants. |
—[*1] Jason S. Diponzio, Rochester, for respondents-respondents.
Appeal from an order of the Supreme Court, Ontario County (Kenneth R. Fisher, J.), enteredFebruary 3, 2011. The order granted the motion of respondents for partial summary judgmentdismissing petitioner's "counterclaims."
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Select Fabricators, Inc. (SFI) commenced an action against William Hoge andWilliam Hoge Consulting, Inc. (WHC) seeking, inter alia, damages for misconduct pursuant toBusiness Corporation Law § 720 and unjust enrichment. Hoge (hereafter, petitioner), ashareholder of SFI, thereafter commenced a proceeding pursuant to Business Corporation Law§ 1104-a seeking, inter alia, dissolution of SFI, a respondent in that proceeding, andasserting what the parties characterize as "counterclaims" against it and its other shareholders,respondents Gary W. Winch and David Yearsley. The action and proceeding were subsequentlyconsolidated. Petitioner and WHC appeal from an order granting the motion of respondents, i.e.,SFI, Winch and Yearsley, for partial summary judgment dismissing the counterclaims in theproceeding. We affirm. We note, however, that WHC, which is not a party to the proceeding, isnot a proper appellant (see CPLR 5511).
Petitioner's contention that Supreme Court erred in granting respondents' motion becauseissue had not been joined at the time it was made pursuant to CPLR 3212 (a), or becauserespondents failed to submit the requisite supporting proof pursuant to CPLR 3212 (b) is raisedfor the first time on appeal and thus is not properly before us (see e.g. Chapman v Pyramid Co. of Buffalo, 63 AD3d 1623, 1624[2009]; Blazynski v A. Gareleck &Sons, Inc., 48 AD3d 1168, 1169 [2008], lv [*2]dismissed in part and denied in part 11 NY3d 825 [2008]). Tothe extent that petitioner advanced that contention in support of his motion for leave to rearguehis opposition to the prior motion of respondents, we note that "[r]eargument does not provide aparty an opportunity to advance arguments different from those tendered on the originalapplication" (Garland v RLI Ins.Co., 79 AD3d 1576, 1577 [2010] [internal quotation marks omitted], lvdismissed 17 NY3d 774 [2011], 18 NY3d 877 [2012]). Petitioner's further contention thatthe court erred in granting that part of the motion for partial summary judgment dismissing thecounterclaim for "Unfair Competition—Customer Lists" is raised for the first time in hisreply brief, and thus it also is not properly before us (see Pieri v B&B Welch Assoc., 74 AD3d 1727, 1730 [2010]).
In addition, petitioner contends that the court erred in denying his request to "replead" in theevent that the court awarded respondents partial summary judgment (see generally CPLR3025 [a], [b]). We are unable to review that contention, however, inasmuch as the recordcontains no evidence concerning the timing, nature or substance of that request, and "a partyalleging error must present an adequate record for appellate review" (de Vries v Metropolitan Tr. Auth., 11AD3d 312, 312-313 [2004]).
We conclude that the court properly granted that part of respondents' motion seeking partialsummary judgment dismissing the counterclaim for "Defamation—Abuse of Process.""[O]ral or written statements made in the course of a judicial proceeding are absolutelyprivileged, notwithstanding the motive with which they are made, so long as they are materialand pertinent to the litigation . . . In determining whether an allegedly defamatorystatement is pertinent and material to a judicial proceeding, the court must accord the statementan extremely liberal construction" (Solomon v Larivey, 49 AD3d 1274, 1275-1276 [2008] [internalquotation marks omitted]). Here, the allegedly defamatory statements were pertinent and materialto the action (see id. at 1275), and they were made " 'in good faith and without malice' "(Lacher v Engel, 33 AD3d 10,13 [2006]).
Contrary to petitioner's further contention, the court properly granted that part of respondents'motion for partial summary judgment dismissing the counterclaim for"Defamation—Libel" inasmuch as the statements at issue with respect thereto areprotected by a qualified privilege. "A qualified privilege arises when a person makes a good[]faith, bona fide communication upon a subject in which he or she has an interest, or a legal,moral or societal interest to speak, and the communication is made to a person with acorresponding interest" (Cusimano vUnited Health Servs. Hosps., Inc., 91 AD3d 1149, 1150 [2012] [internal quotationmarks omitted]; see Liberman v Gelstein, 80 NY2d 429, 437 [1992]; Mancuso v Allergy Assoc. ofRochester, 70 AD3d 1499, 1500 [2010]). Here, respondents established that Yearsley'sstatements on behalf of SFI regarding purchases made by petitioner using SFI's credit card wereof mutual interest to SFI and the company to which those statements were made (see EastPoint Collision Works v Liberty Mut. Ins. Co., 271 AD2d 471, 471-472 [2000]; Present vAvon Prods., 253 AD2d 183, 187-188 [1999], lv dismissed 93 NY2d 1032 [1999];see also Anas v Brown, 269 AD2d 761, 763 [2000]). Petitioner failed to defeat thedefense of qualified privilege by demonstrating that Yearsley made the statements in questionwith malice (see generally Liberman, 80 NY2d at 437-439; Kondo-Dresser v Buffalo Pub. Schools,17 AD3d 1114, 1115 [2005]).
We further conclude that the court properly granted that part of respondents' motion forpartial summary judgment dismissing the counterclaim for "Conspiracy" because " 'New Yorkdoes not recognize civil conspiracy to commit a tort as an independent cause of action' " (Thyroff v Nationwide Mut. Ins. Co., 57AD3d 1433, 1435, appeal dismissed 12 NY3d 911 [2008], lv denied 13NY3d 710 [2009]). Finally, we have reviewed petitioner's remaining contention and concludethat it is without merit. Present—Smith, J.P., Fahey, Peradotto and Lindley, JJ.